March
14, 2003, 10:15 a.m.
Don’t Mess with Texas
Non-issue holding
Justice Owen.
By Christopher
Flannery
exas Supreme Court Justice Priscilla Owen made her second appearance before
the Senate Judiciary Committee Thursday — a fate few would wish on
Saddam Hussein. While the hearing was more subdued than her first, liberal
advocacy groups have not eased a bit, and are calling for the Senate to
filibuster her nomination. Since she first appeared, Justice Owen's feminist
opponents have seized upon a battle cry: Owen is extreme, even by Texas
standards. You have to give it to the left; they do have catchy sound
bites. But like "No Blood for Oil," what the Owen mantra boasts
in Madison Avenue appeal is more than made up for in the complete absence
of substance.
To appreciate
the paper-thin quality of the argument against Justice Owen and Texas requires
but a brief examination of the primary charge — that Owen and Texas
are out-of-step on the issue of abortion. This charge is not based upon
any statute challenging Roe v. Wade or case in which Justice
Owen denied or challenged the right to an abortion — for no such statute
or case exists. Rather, the allegation stems from a string of opinions in
which Justice Owen interpreted the Texas "parental notification"
statute.
It is first necessary
to note that far from being "extreme," the Texas notification
law places the state on the moderate-to-liberal end of the regulatory
spectrum. A quick survey reveals that 43 states have either parental notification
or consent laws on the books. Of these states, a majority utilize the
more restrictive "parental consent" type statutes, which require
a juvenile seeking an abortion to obtain the consent of at least one parent,
or to go to court for a judicial bypass.
Thus, in Ted Kennedy's
liberal haven of Massachusetts, a minor seeking an abortion must first
seek the consent of at least one parent, or she must go to court for a
finding that she meets the requirements for a bypass. If a minor in Senator
Biden's home state of Delaware wants an abortion, she must also get consent
from a statutorily authorized relative or health-care professional, or
seek a judicial bypass. In Senator Edward's home state of North Carolina,
a minor seeking an abortion either needs the consent of a parent or grandparent
with whom she has lived for six months, or she will have to meet the standards
for judicial bypass. And in Senator Kohl and Senator Feingold's home state
of Wisconsin, consent of one parent is also required barring judicial
bypass.
By contrast, Texas
joins a minority of states with a less restrictive parental notification
statute. Under the Texas law, the parent does not have a formal veto as
under a consent law, but rather a doctor performing an abortion on a minor
must notify her parents at least 48 hours before performing the procedure.
Although the Supreme Court has not expressly required a judicial-bypass
mechanism for notification statutes, the Texas law provides that a minor
can obtain permission from a court to avoid the notification requirement
if she can demonstrate that she is "mature and sufficiently well
informed," or that notification would lead to abuse, or that notification
would not be in her best interest. Thus, oddly enough, a majority of the
Democrats on Judiciary Committee live in states that are more restrictive
than Texas.
During Justice Owen's
appearances before the Judiciary Committee, her opinions interpreting
the Texas notification statute have been derided as "activist,"
and members of the committee have accused her of reading requirements
into the statute. What was Justice Owen's act of activism? In interpreting
the somewhat vague or ambiguous terms of the statute (i.e., what does
it mean to be "mature" or "well-informed" for the
purposes of the statute), she looked to and quoted from United States
Supreme Court precedent. Yet the Democratic members of the Judiciary Committee
were not satisfied with this answer. If the words she used were not actually
in the statute, then she was reading in new requirements and judging in
an "activist" fashion. Yet the irony of these statements was
somehow lost on them. How is it that in defending abortion — a right
that cannot be found unless one wanders from the text of the Constitution
into the murky emanations of penumbra — that Owen's opponents make
an argument that even the most rigid textualist reject: the idea that
a law must be read as a set of rigid words, devoid of meaning, context,
and of their prior interpretation by superior courts? If a Texas supreme
court justice is "activist" because she abides by the decisions
of the United States Supreme Court, then the term "activist"
has been flipped on its head. And indeed, for the members of the Judiciary
Committee, it has. Activism, once meaning a judge who acts based upon
personal will rather than law, now appears to mean issuing rulings that
are contrary to the desires of liberal advocacy groups.
So as Justice Owen
awaits a vote from the Judiciary Committee and the Senate as a whole,
keep in mind that no matter how many times Owen's opponents rattle off
the cliché, the facts make clear that Justice Owen isn't extreme
— and neither is Texas.
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exas Supreme Court Justice Priscilla Owen made her second appearance before
the Senate Judiciary Committee Thursday — a fate few would wish on
Saddam Hussein. While the hearing was more subdued than her first, liberal
advocacy groups have not eased a bit, and are calling for the Senate to
filibuster her nomination. Since she first appeared, Justice Owen's feminist
opponents have seized upon a battle cry: Owen is extreme, even by Texas
standards. You have to give it to the left; they do have catchy sound
bites. But like "No Blood for Oil," what the Owen mantra boasts
in Madison Avenue appeal is more than made up for in the complete absence
of substance.
